A mix-up over a copy of the sex tape at the center of R. Kelly's trial is a "rotten tomato in the barrel," Judge Gaughan said this afternoon as the two sides squared off again over the so-called "mole defense."
It's unclear what measures Gaughan will take about the mix-up—a mistake in the state's attorney's office.
Prosecutors gave Kelly's defense team a copy of the sex tape on DVD two weeks ago, telling them it was an exact copy of the original. But the DVD copy is actually of a lower quality than the original, prosecutor Robert Heilingoetter acknowledged today.
Also, the copy was not made by prosecution video expert Grant Fredericks, as the state had previously claimed, but by a junior member of the state's attorney's staff, Heilingoetter said.
The defense has had access to the original sex tape, but the mistake could prove significant because Kelly's attorneys used the DVD during their questioning of defense video expert, Charles Palm.
Shown frames from the DVD, Palm said he could not see a mole on the man in the tape's back.
Fredericks used a high quality copy of the original tape when he testified, pointing out a spot on the man in the tape's back that corresponds with a mole on Kelly's back.
Both sides signed a stipulation last week, agreeing that the DVD was an accurate copy of the sex tape. That stipulation was read to the jury and will probably now have to be corrected in some form, at a minimum.
Testifying again today—this time as a prosecution rebuttal witness—Fredericks said that Palm "should have known" that the DVD was a lower quality copy, saying it was "obvious."
Fredericks again said that the tape could not have been faked, describing why he believed the spot on the man's back was not video "noise."
But defense attorney Ed Genson said the jury would now think that Kelly's team had acted in "bad faith" by using the low quality DVD during Palm's testimony.
Palm testified last week that he had analyzed high quality copies of the tape before the trial, saying he based his opinions on those high quality copies.
Also Tuesday morning, Robert Wolf, an assistant District Attorney from Georgia, testified that Yul Brown—the fiance of star prosecution witness Lisa Van Allen—was not offered a lenient sentence on an unrelated weapons charge in return for Van Allen's assistance in Kelly's trial.
Kelly's lawyers have repeatedly suggested that Brown and Van Allen "cooked up a scheme" to help Kelly's prosecutors in return for a light sentence for Brown.
Brown faced up to 22 years on drugs and weapons charges after a loaded AK47 was found at his home in Atlanta. He was instead sentenced to probation.
Wolf, who handled Brown's prosecution, said he had never discussed Brown with anybody involved in Kelly's case.